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Marriage Equality

Justice Kennedy Pens 5-4 Decision for Marriage Equality

by: Brian Leubitz

Fri Jun 26, 2015 at 09:08:11 AM PDT

Decision makes marriage equality the law of the land across the nation.

by Brian Leubitz

You can find many words on the marriage decision plastered all over the interwebs. But I wanted to point out the closing of Justice Kennedy's decision in the 5-4 Obergefell decision.

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered. (Obergefell v Hodges)

As many have stated, marriage equality isn't the end of the fight for LGBT rights or civil rights more broadly, there isn't such thing as the end of that fight. We've seen too much over the past weeks and months to think that is the case. Even within the LGBT community, there are a litany of lines that are arbitrarily drawn, yet the results are all too real.

Yet, for one day, love wins. And that makes this a good day. And for my fellow San Franciscans, what a happy #SFPride this will be.

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Prop 8 is Really, Really Dead

by: Brian Leubitz

Wed Aug 14, 2013 at 15:48:42 PM PDT

California Supreme Court rejects bid to enforce marriage ban

by Brian Leubitz

Andy Pugno and his ProtectMarriage.com crew are seemingly out of options in their increasingly quixotic quest to defend Prop 8. Everybody else in the world saw the writing on the wall when the Supreme Court dismissed the case on standing grounds, but they held out hope. It is over now:

The justices unanimously denied review of a suit by conservative Christians who put Proposition 8 on the ballot and argued that it remains in effect statewide, despite a federal judge's 2010 ruling in San Francisco that declared it unconstitutional. (SF Chronicle)

But don't worry, Pugno is taking it well. In a statement, he had this to say:

"The California Supreme Court's choice not to address the merits of our case, like the U.S. Supreme Court's choice to avoid the merits, leaves grave doubts about the future of the initiative process in our state. Now, voters will be less confident than ever that their votes will mean something. When politicians disregard the law, and the courts refuse to get involved, what are we left with?"

Oh, so much to work with here. First, Prop 8 was ruled unconstitutional by a federal district court judge, and then by a 9th Circuit panel. You are upset that your votes don't count? Tough, it is the purpose of the courts to protect minorities from the abuse of the majority. That isn't a bug, that is a feature of our Constitution.

But, on another level, Pugno and his crew should be happy to just have kept the game up for as long as they did. The writing was on the wall. It probably would have involved wasting a lot of money, but Prop 8 wasn't going to last long. In the most recent Field Poll (PDF), 61% of Californians support marriage equality. That's up from their 2008 poll, when 51% supported it. Had this gone to the ballot, marriage equality supporters would have won easily.

Perhaps Pugno should be thanking the courts for saving him a lot of embarassment (and cash). But for a guy who reaches at "increasingly absurd" legal challenges, as SF City Attorney Dennis Herrera called ProtectMarriage's remaining options,  perhaps a thank you letter won't be forthcoming.

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Prop 8 Proponents Try to Block Marriages

by: Brian Leubitz

Fri Jul 12, 2013 at 11:58:47 AM PDT

Andy Pugno goes back to the well

by Brian Leubitz

The Prop 8 proponents aren't giving up. Just because they were told that they don't have standing doesn't mean they won't try to find some way to fight the tide of history. This seems to be what they think is their best hope:

ProtectMarriage, the group that sponsored the 2008 ballot measure banning gay marriage, urged the state high court to act under a California constitutional provision that prohibits officials from refusing to enforce a law unless an appellate court has first determined the law is unconstitutional. There is no binding appellate ruling that says Proposition 8 is unconstitutional.

Legal experts predicted the California court would reject the challenge. Lawyers for the gay couples who fought Proposition 8 in federal court said they anticipated such an action and were prepared to respond to it. They said a state court may not interfere with a federal court's decision.(Maura Dolan / LAT)

You can read Mr. Pugno's handiwork here (Full Petition PDF). The petition alleges that since there was no appellate court ruling against Prop 8, the state actors violated Article III, Sec. 3.5 of the California Constitution.  Under that section, state actors are not allowed to ignore state laws on their own finding of unconstitutionality barring an appellate ruling against the law. Now, that's all well and good, but in reality, a federal court has struck down Prop 8.

Judge Walker's opinion in the district court level has been left as the last court case in the matter. And as the stay against marriages has been lifted, that is a valid federal court matter. Whether Pugno and his gang like it, federal law is supreme over state law. Prof. Vic Amar of the UC Davis Law School said this of the petition:

"The California Supreme Court will likely stay out of this and say the scope of Judge Walker's order is a matter for the federal courts to determine," Amar said. "State courts generally won't get into the business of construing federal court orders. They leave that to the federal courts."(Maura Dolan / LAT)

It's not likely to go anywhere, but apparently Pugno has nothing better to do than spit into the wind of history.

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A Very Happy Pride

by: Brian Leubitz

Sun Jun 30, 2013 at 06:45:34 AM PDT

"Super-Pride" celebrates marriages going on now

by Brian Leubitz

In case you haven't noticed, same-sex weddings began on Friday afternoon with a one sentence order from the 9th circuit lifting the stay. In San Francisco, marriages will be going on at City along side Pride festivities.

I don't think there's much more to say than: Happy Pride!

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When will the weddings start?

by: Brian Leubitz

Wed Jun 26, 2013 at 15:11:33 PM PDT

Kamala Harris discusses Prop8 rulingA look at dates

by Brian Leubitz

A few folks have asked the all-important question of when will the weddings start. When, indeed?

It is a relatively simple question with a somewhat complicated response. With some help from the press office of the SF City Attorney's office, I've dug out that information so you don't have to. To start from the beginning, after any US Supreme Court decision, there is generally a 25-day period for parties to file a petition for rehearing of a U.S. Supreme Court decision. Once that period expires, the high court issues its final judgment.  U.S. Supreme Court Rule 44 provides the following:

Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time.

In this case, the Ninth Circuit has a stay-pending-appeal in place, and traditionally the appellate court will not lift them until the final judgment is entered after the 25 day period. However, a party could still petition the appellate court to vacate its stay, and nothing would prevent the 9th Cir from acting on the petition.  It is tradition to wait for the rehearing period to expire, but it is merely a judicial prerogative. The Ninth Circuit could decide to dissolve its stay even in before the rehearing period elapses, and before the final judgment.  However, that is up to the Ninth Circuit in all their judicial wisdom.

All that being said, in today's press conference, Attorney General Kamala Harris very politely asked the court to lift the stay.

"There could potentially be that delay of 25 days," Harris acknowledged. "Our point is the Ninth Circuit Court of Appeals has within its power an ability to lift the stay before the judgment comes down, so what I am asking specifically is that the Ninth Circuit lift its stay.

How that request actually gets handled will be sorted out later this week, and the 9th Circuit will probably consider it shortly. The proponents of Prop 8 will likely be none too pleased, but the ship has sailed at this point. The highest Court in the land has ruled, and Prop 8 is not long for this world.

So, I can't give an exact date. In a perfect world, the 9th circuit would lift the stay right away and we would be able to start in a few days. But in the "worst case scenario", we are looking at a delay of 25 days, with weddings beginning in late July. Sounds like a lovely time for a few thousand weddings.

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Prop 8 & DOMA: The Court Decides. Mostly Good.

by: Brian Leubitz

Wed Jun 26, 2013 at 06:51:22 AM PDT

by Brian Leubitz

I'm currently awaiting the decisions that the Supreme Court is going to release. In the meantime, you should check out the websites of Americans for Equal Rights, who supported the Prop 8 case. SCOUTUSBlog will be liveblogging, and will likely have some of solid analysis very quickly. There will be a bunch of press releases and the like, and I'll try to sort through some of that as well. Stay tuned.

7:03AM: DOMA Went down. Here's the link to the decision. Here's a post by Adam Bonin of Daily Kos analyzing the decision.

7:16AM: From the last paragraph of Justice Roberts dissent in the DOMA case, it looks like the Prop 8 case will be dismissed on standing grounds. "We hold today that we lack jurisdiction to consider it in the particular context of Hollingsworth v. Perry."

7:30AM: Yup, 9th Cir appellate ruling was vacated, meaning Judge Walker's ruling stands.  From Amy Howe at SCOTUSBlog:

Here's a Plain English take on Hollingsworth v. Perry, the challenge to the constitutionality of California's Proposition 8, which bans same-sex marriage: After the two same-sex couples filed their challenge to Proposition 8 in federal court in California, the California government officials who would normally have defended the law in court, declined to do so. So the proponents of Proposition 8 stepped in to defend the law, and the California Supreme Court (in response to a request by the lower court) ruled that they could do so under state law. But today the Supreme Court held that the proponents do not have the legal right to defend the law in court. As a result, it held, the decision by the U.S. Court of Appeals for the Ninth Circuit, the intermediate appellate court, has no legal force, and it sent the case back to that court with instructions for it to dismiss the case.

UPDATE: Attorney General Kamala Harris is holding a press conference at 10:30 this morning. It will be live-streamed on the AG's website here. Here's her June 3 letter to the Governor stating that the Walker decision applies to all 58 counties.

In the press conference, AG Harris called for the 9th Circuit to live the stay, and to apply the permanent injunction against Prop 8. "We cannot delay or deny Californians their civil rights."

She also strongly supported the Equal Protection decision on DOMA. "We as Californians should be very proud. Californians now support these couples' right to marry. ... Hopefully the children of these couples will understand that they are equal to all, and inferior to none."

The stay could be as long as 25 days, but she is asking the 9th Circuit to lift the stay early. As soon as the stay is lifted, marriages can begin.

UPDATE: I'm still looking for clarity on when marriages will begin, but Gov. Brown has directed all counties to begin issuing licenses when the court lifts the stay. When that will happen will be up to the 9th Circuit and probably Judge Ware, who last had the case at the District Court level. At 9:40, I got an email from SF Assessor/Recorder that she expects the marriages to begin in mid-to-late July.

CapitolAlert is posting the press statements from California leaders. Read them here.

I've just updated the post with a map of events to celebrate tonight. You can see the whole thing from United for Marriage site.View United for Marriage: Decision Day in a larger map.

More from Adam Bonin. Long story short, good result, bad path. The problem with winning on standing means that we get a crappy precedent going forward. Maybe it will never matter in California, but now the Court has said that only the state Executive can defend legislation. And if they fail to do so, then the law just doesn't get the same protection as laws the Executive likes.

This was the outcome which I wasn't the only one to predict, but I will confess that while it ends in the right place (Prop 8: dead) I am not at all crazy about the route. As I've suggested before, I think there's something constitutionally hinky about having an initiative system designed to allow The People to bypass elected officials which allows those elected officials to thwart a full airing of the constitutional issues involved in a referendum. I can too-easily imagine a counterexample which a Republican administration would refuse to defend a liberal initiative in court, such as a hypothetical effort to overturn Prop 209 and instead require California's universities to employ affirmative action practices in admissions, or an initiative imposing new limits on campaign financing, and for which the initiative's supporters would be similarly out-of-constitutional luck. (Adam Bonin)

Follow my tweets for more.

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Defense Of Marriage Act Looks to Be in Trouble

by: Brian Leubitz

Wed Mar 27, 2013 at 11:44:11 AM PDT

DOMA faces skeptical Kennedy

The audio of the DOMA Oral Arguments is now available online, and all signs are positive for the LGBT community. I'll post some snips to this post shortly. At any rate, Justice Kennedy seemed very skeptical of the federal government's right to ignore state definition of marriages. (Here is the Transcript of the Oral Arguments.)

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence.  That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail.   The only barrier to such a ruling, it appeared, was the chance - an outside one, though - that the Court majority might conclude that there is no live case before it at this point. (Lyle Denniston/SCOTUSBlog)

Now, a ruling based on federalism (aka states rights) would be a much more narrow decision than something based on the equal protection clause of the 5th Amendment. In other words, the federalism argument says nothing about the inherent right to marriage equality, it would simply say that the federal government cannot ignore the duly granted marriages of each state.

The first hour of the argument dealt with the question of whether the House Republicans (through the Bipartisan Legal Advisory Group) are an appropriate party for the case, and whether this is a case that the Supreme Court can now hear. The Court seemed generally comfortable with exercising jurisdiction on the case, but it is a highly technical question of law.

After a break, the argument moved on to the merits of the case, and Paul Clement, the House's attorney, got beat up for a while by Justices Sotomayor and Kagan. (Check out the "skim milk" audio clip.) Furthermore, Justice Kagan quoted from the findings in the legislative history (see the 74minute mark of the main clip):

I'm going to quote from the House Report  here -- is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."

That quote resulted an audible mumble from the gallery. Clement argued that the House report had other rational basis points to support the statute. He didn't argue that there was animus against the LGBT community, just that the animus wasn't enough to strike down the law.

On the flip side, the government, and Ms. Windsor's attorney, got some grilling on their position that DOMA violated equal protection. The question of what the standard should be, (strict, intermediate, or rational basis), didn't seem to be going the government's way either. In fact, if Justice Kennedy gets his way, and decides the case on federalism, we may not get to that question at all in this case.

In the end, if Kennedy is leaning the way he seemed to be in the oral argument, DOMA seems unlikely to survive. However, a broad decision in either this case or the Prop 8 case seems increasingly unlikely.

Also, check out AfJ's audio analysis of the case.

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Prop 8 Oral Argument Reactions

by: Brian Leubitz

Tue Mar 26, 2013 at 10:09:00 AM PDT

Court looks unprepared to make a sweeping decision for marriage equality

by Brian Leubitz

UPDATE: I have updated the post with the complete audio from the oral arguments. I also included some snips that the LA Times posted as well. You can select any of the clips to listen to it directly, or click down to the bottom to listen to the whole argument.

Any decision is still months away, but today's oral argument did give some strong clues that the Court, and Justice Anthony Kennedy particularly, is not ready to make any big decisions one way or another. From Tom Goldstein at SCOTUSBlog:

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.

Several Justices seriously doubt whether the petitioners defending Proposition 8 have "standing" to appeal the district court ruling invalidating the measure.  These likely include not only more liberal members but also the Chief Justice.  If standing is lacking, the Court would vacate the Ninth Circuit's decision.

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four - i.e., all the members other than Justice Kennedy.  For the more liberal members of the Court, there was no clarity on how broadly they would rule.

Any ruling would likely end up with the 9th Circuit's decision being vacated and Judge Vaughn Walker's District Court decision striking down Prop 8 as being the last word on this case. The practical effect of such a muddled ruling would be marriage equality in California, but the rest of the country having to wait a few more years.

Despite 58% of Americans supporting marriage equality is not enough, the Court has learned to be a bit timid on these dramatic issues. Perhaps there will be a case in a few years that eventually ends marriage discrimination in all 50 states, but it might not be this one. At any rate, the current dramatic upsurge in support for gay rights will eventually make this issue quaint. But for now, perhaps we'll end up with a few more years of the fight.

Lyle Denniston, also at SCOTUSBlog, has a good recap of the argument.

Additional Links:

Curated Audio Explanation from Alliance for Justice

Tom Goldstein, SCOTUSBlog, Getting to five might be difficult

Kate Kendall, Executive Director of National Center for Lesbian Rights

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AG Kamala Harris Takes on Prop 8 Supporters on CNN

by: Brian Leubitz

Mon Mar 25, 2013 at 08:44:33 AM PDT

Makes argument for marriage as a "fundamental right"

by Brian Leubitz

Attorney General Kamala Harris (disclosure: I worked on her 2010 campaign) has always been a stalwart defender of marriage equality, and has appeared in many forums on the issue. Her appearance on CNN's morning show with Candy Crowley was much the same. You can view that segment to the right.

The Prop 8 case can go a number of ways. The Court can strike down Prop 8 for California alone, along the same lines as the 9th Circuit. They could strike down bans on same-sex marriage more generally. Or they could reject the case on "standing" grounds, which would mean that the Prop 8 proponents did not have the right to appeal the decision. That would mean that Judge Walker's decision at the district court level would stand. What that would mean for same-sex marriage bans more generally would be up for interpretation.

And of course, the Court could simply decide that marriage equality is not a matter of equal protection. But, as our Attorney General argued so forcefully here, the Court has called marriage a fundamental right nearly 20 times in its history. And to uphold Prop 8 would mean that Equal Protection simply does not apply to one class of citizens.

Now, there is much more to the case than that. I'd recommend the Equality on Trial team, as they've already got some good stuff online, and will be following the case from DC all this week as we get the oral argument.

Over the flip, you'll find the other CNN segment with AG Harris, where they discussed gun control and immigration.

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San Francisco's Lawyers and Marriage Equality

by: Brian Leubitz

Tue Mar 19, 2013 at 07:55:10 AM PDT

San Francisco has been there from day one

By Brian Leubitz

Back in 2004, Gavin Newsom was not a popular dude in Democratic circles. Well, scratch that, he was an enormously popular dude in almost all circles in San Francisco, with approval ratings over 80%. But, take a few steps out of the SF bubble, and Democrats were seething over what many saw as the reason for John Kerry's loss in 2004. From the New York Times in 2004:

Some in the party were suggesting even before the election that Mr. Newsom had played into President Bush's game plan by inviting a showdown on the divisive same-sex-marriage issue.

Most of the talk has been behind closed doors. But when Senator Dianne Feinstein, a fellow Democrat and Newsom supporter, answered a question about the subject at a news conference outside her San Francisco home on Wednesday, the prickly discussion spilled into the open.

"I believe it did energize a very conservative vote," Ms. Feinstein said of the same-sex marriages here. "I think it gave them a position to rally around. I'm not casting a value judgment. I'm just saying I do believe that's what happened."(NYT)

My oh my, have times changed. John Kerry had more than just one reason for his loss in 2004, but looking back, Gavin Newsom just looks like a leader who took a step that, while perhaps one step ahead of the institutional leadership of his party, was just leading where the country was already heading. To this day, Newsom's marriage activism has given him credibility with the LGBT community, as well as the general Democratic base. It made him a national name, even if it made him a bit unpopular with some big names at the time.

But through all that, San Francisco's work for marriage equality was about more than just the ceremonies at our beautiful City Hall. The City also directly took on the injustice in court. And for the better part of a decade, the City Attorney and his staff have been in on every legal case about California's marriage inequality.

Nine years ago, city officials here sued to strike down a state ban on same-sex marriage. It was the first government challenge to such a law, and it set in motion a legal chain reaction that gave rise to a momentous Supreme Court case to be argued next Tuesday. ...

"We're defense lawyers," Dennis J. Herrera, the city attorney, said in his office in San Francisco's palatial City Hall. "We defend laws that are on the books. And we got a lot of heat at the time for stepping out of that traditional defense role."

In the years that followed, Mr. Herrera's office - which now includes five former Supreme Court law clerks, more than some major law firms - has been involved in every phase of the legal war over same-sex marriage in California.

Since that time, the California Attorneys General, Brown and Harris, have followed the City's lead in calling for the reversal of Prop 8. And President Obama's "evolution" on marriage equality has recently extended to the Solicitor General filing a brief with the Supreme Court against Prop 8. Would that have happened without the San Francisco leadership? Maybe, but SF gave the rest of the nation a kick in the pants and the motivation for the rapid change on the question of marriage equality that we are at now.

In the most recent polls, support for marriage equality hit 58%. And Republican elected leaders are jumping as far away as possible from NOM's sinking ship. Apparently with all of the GOP introspection these days, that is supposed to make them hip, or cutting-edge or something.

But real leadership involves real risks. San Francisco's leaders took those risks from Day one, and have been there ever since.

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Field: Marriage Equality Goes Main Stream, Economy Still Glum

by: Brian Leubitz

Fri Mar 01, 2013 at 14:26:47 PM PST

61% of Californians support marriage equality

by Brian Leubitz

In the continuing data trickle from the good folks at the Field poll, the first covers the subject of marriage equality. As we've seen nationally, the numbers continue to shift towards the freedom to marry.

By a nearly two-to-one margin (61% to 32%), California voters approve of allowing same-sex  couples to marry. This represents a complete reversal in views about the issue from 1977, when The Field Poll conducted its first survey on this topic, and is the highest level of support ever measured by the poll. (Field)

No matter what the Supreme Court does on Prop 8, that odious measure is not long for this world. It will either be overturned in the courts or at the ballot before we get a new president.

In today's data, we get the voters take on the status of the economy. In short, people are still gloomy:

Greater than seven in ten voters (72%) currently describe California's economy as being in bad times. In addition, six in ten (61%) describe unemployment as very serious in the state, and just  36% expect job opportunities to improve in the coming year.  While this represents a slight improvement in the extremely bleak assessments of the state's  economy that voters have offered over the past five years, the views of Californians remain gloomy.

In addition, when asked to describe their own financial situation, nearly half (44%) say they are  worse off now than they were last year, while fewer (30%) are better off. This is the sixth  consecutive year in which more voters report being financially worse off than better off. (Field)

Now, the economic indicators show that the economy is slowly improving, but the results are just too modest for the time being. If the sequester can be cleared out in Washington, we should expect to see continued growth. If not, we could see an unfortunate downturn.

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Obama Administration files amicus brief opposing Prop 8

by: Brian Leubitz

Thu Feb 28, 2013 at 14:38:34 PM PST

Upcoming brief expected to argue that marriage equality should be law of the land

by Brian Leubitz

There has been a lot of discussion over the past few days as to whether the president will file a brief at the Supreme Court about Prop 8. The answer, apparently, is yes.

The Obama administration will endorse same-sex marriage today by telling the Supreme Court that California should not be permitted to ban gays and lesbians from tying the knot.

The highly anticipated legal brief was expected later in the day, just hours before the deadline, the Associated Press reported.

UPDATE: Here's the brief, my take coming this evening. You can also find it over the flip.

The underlying argument of the brief is relatively simple. Namely, laws prohibiting members of the LGBT community from doing something, in this case getting married, should be subject to "heightened scrutiny." That is to say, government needs something more than merest rational basis for the discriminatory law. The administration's brief then goes on to say that the purported reasons given by the Prop 8 proponents do not meet that heightened scrutiny.

You've heard all the reasons they came up with why Prop 8 was valid: teh kidz, teh judges, and teh traditions. The government dismisses these with the one bullet that goes to the heart of the issue: California grants all the rights and privileges of marriage to gay and lesbian couples through domestic partnership. So, it can't be merely to protect children. Denying the word "marriage" is simply done for impermissible purposes. Or, in the solicitor general's words:

Private respondents, committed gay and lesbian cou-ples, seek the full benefits, obligations, and social recog-nition conferred by the institution of marriage. California law provides to same-sex couples registered as do-mestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts. Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.

In other briefing news, NFL players Chris Kluwe (Minnesota's punter) and Brendon Ayanbadejo (Ravens linebacker) filed their own brief, available here. Not sure it will carry similar weight to the solicitor general's, but their effort is sincerely appreciated.

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Prop 8 Plaintiffs, SF City Attorney File Briefs in Supreme Court

by: Brian Leubitz

Thu Feb 21, 2013 at 09:46:58 AM PST

Argue that Prop 8 denies equal protection, proponents do not have standing

by Brian Leubitz

A busy day in the Prop 8 case today, as the City of San Francisco filed their brief, and the original plaintiffs filed their reply brief. The links will take you to Scribd to read them.

The Supreme Court asked two questions, one on the merits of the case, the other on whether the Prop 8 proponents have standing to appeal the case. After discussing why they don't think there is standing, both move quickly on to the merits. The arguments are two-fold, that Prop 8 violates due process of the law, and that it is a violation of the equal protection clauses of the fifth and fourteenth amendments.

As the March 26 hearing approaches, I'll dig into all of the briefs and summarize what to watch for at oral argument. You can peruse all of the various filings at AfER's website.  

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Prop 8's fate to be determined at the Supreme Court

by: Brian Leubitz

Sat Dec 08, 2012 at 15:20:33 PM PST

Supreme Court takes on marriage equality, Prop 8 and DOMA

by Brian Leubitz

Mark your calendars for June 2013. That's the close of the current Supreme Court session, and by that time we should have a decision on marriage equality. On Friday, the Court announced that it would hear cases on both Prop 8 and the so-called "Defense of Marriage" Act. But there is a caveat in the Supreme Court's order:

About two decades after the campaign to win the right to marry for same-sex couples began, the Supreme Court on Friday afternoon agreed to consider - but not necessarily to decide - some of the most important constitutional issues at the heart of that national controversy.  Each side gained the opportunity to make sweeping arguments, for or against such marriages.  But the Court left itself the option, at least during the current Term, of not giving real answers, perhaps because it lacks the authority to do so. (ScotuBlog)

With respect to that open question of whether the Court has standing, it is a question that was at the center of much speculation before the 9th Circuit's decision. Ultimately, the Ninth Circuit determined that the proponents of the law, ProtectMarriage.com, had standing to defend it. If the Court decides that it doesn't have standing, Judge Walker's original decision will hold and marriages will resume in California.

Now, as a matter of scheduling, we should have oral argument for both cases early next year. The cases will likely be scheduled for the same day, but that is not definite at this point.

Turning to the merits, well, you can find many reasonable predictions. But the Dean of UC-Irvine Law is both esteemed and usually pretty accurate at this game. His take:

"I believe the court will find that Prop. 8 and (the Defense Of Marriage Act) are unconstitutional," Chemerinsky said. "The court decision will be 5-4 and I predict Justice Kennedy will write it. The court will say that the government has no legitimate interest in denying gays and lesbians the right to marry. ...
"Justice Kennedy wants to write the next Brown v. Board of Education, not the next Plessy v. Ferguson," Chemerinsky said.

Kennedy has actually been pretty good on LGBT rights issues, having written Lawrence v Texas and Romer v Evans, two of the most noteworthy gay rights cases.

For further discussion of possible options on how the Court goes on these cases, check out the Same Sex Marriage Section of ScotusBlog. NYU Law Professor Kenji Yoshino has a particularly interesting take on the three main ways that the Court could strike down Prop 8 without requiring nationwide marriage equality.

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Prop 8 litigation status at the Supreme Court likely determined today. UPDATE:Nope.

by: Brian Leubitz

Mon Dec 03, 2012 at 22:12:29 PM PST

Supreme Court to decide on future of Prop 8 litigation

by Brian Leubitz

It has been over four years since Prop 8 passed in November 2008. Though it would now appear as pro-equality forces are on the march nationally, and could have flipped the 2008 final tally this year, we are still waiting for news from the Supreme Court.

In theory, that should come today. While the court could possibly hold over a final decision, that's the luxury of being the nation's highest court, I suppose. However, the justices were to discuss the case and announce a decision on whether to grant review of the decision today. So, what are we looking at?

If they decline to review the decision, Prop 8 remains dead in California. Marriages would likely begin once the Ninth Circuit lifts the stay and clears the last few procedural hurdles. Unfortunately, due to the narrow decision of the panel, the case only directly impacts California.  However, you would certainly have to think that marriage inequality amendments in other 9th Circuit states will be looked at skeptically until there is a Supreme Court decision.

If they take the case, a decision would likely come in the batch of decisions released in June after oral arguments. The Court also will decide whether to look at the constitutionality of the Defense of Marriage Act.  With DOMA have being ruled unconstitutional in several states, it seems at least better than a 50-50 call that the Court will deal with at least one of the LGBT rights issues.

And, so the waiting continues...

UPDATE: Well, as soon as I post this, it seems that they may be pushing it off. Not official yet, but ScotusBlog has a good track record. Their rumor  is that the Court is determining which marriage equality cases to take, especially with regards to the DOMA cases.

UPDATE: Well, the time has come and gone on Monday now too. It looks like Friday is the next best guess. More from ScotusBlog.

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Proposition 32′s Anti-Gay Warriors

by: Leighton Woodhouse

Thu Oct 11, 2012 at 13:51:44 PM PDT

This is an article written by Matthew Fleischer for Frying Pan News. Check Frying Pan News for regular in-depth coverage of Prop 32, its funders, and how it will impact working Californians.

Brothers David and Charles Koch, and other libertarian billionaire backers of Proposition 32, including Charles Munger Jr., like to wrap themselves in the toga of individual freedom. However, despite their supposed ideological fervor for personal liberties, they have allied themselves with some of the nation's most vociferously anti-gay religious activists - all for a campaign to outlaw the use of automatic payroll deductions from union members and corporations for political purposes. Although it is not widely seen as a "gay issue," Prop. 32's passage could have far-reaching consequences for California's gays and lesbians.

"If we lose organized labor as a funded political ally in California, the LGBT movement is in big trouble," says Courage Campaign founder and LGBT activist Rick Jacobs.  "Would you rather have Howard Ahmanson thinking about your rights in the workplace, or organized labor? That's what this is about. Mark my words, people like the Kochs and Ahmanson are not thinking about how LGBT people are welcome in the workplace and not discriminated against."

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Um, Can I Take a Mulligan? Prop 8 Supporter Flip-Flops

by: Brian Leubitz

Fri Jun 22, 2012 at 11:05:03 AM PDT

Blankenhorn testified at Prop 8 Trial, Now says we should work for marriage equality

by Brian Leubitz

In many ways, it was actually better for David Blankenhorn to be on the other side. He was something of a comic figure. He testified on behalf of the ProtectMarriage.com crew, and ultimately got so twisted around that his testimony likely did them more harm than good. In fact, he ended up saying that we would be "more American" on the day that we allowed marriage equality.

So it shouldn't be all that shocking that he's decided to write an op-ed in the New York Times calling for an end to the discrimination against same-sex couples. (h/t P8TT) Now, I'm not trying to be too cynical here, but how else was David Blankenhorn going to get an op-ed in the New York Times?

But, I digress, here's a snippet on his change of heart:

But there are more good things under heaven than these beliefs. For me, the most important is the equal dignity of homosexual love. I don't believe that opposite-sex and same-sex relationships are the same, but I do believe, with growing numbers of Americans, that the time for denigrating or stigmatizing same-sex relationships is over. Whatever one's definition of marriage, legally recognizing gay and lesbian couples and their children is a victory for basic fairness.
*** **** ***
And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.

So, is he saying that he is just now figuring out that much of the opposition to marriage equality is/was animus? Or, was his faith in his position strong enough that he could look past that. Either way, either he's insensitive or kind of slow.

But, there is value in the symbolic import of having somebody who testified in favor of Prop 8 changing their position, for whatever reason. If Blankenhorn can truly persuade a few folks to change their minds too, then perhaps his decades arguing vociferously against marriage equality can be forgiven.

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Prop 8 En Banc Hearing Denied

by: Brian Leubitz

Tue Jun 05, 2012 at 10:08:54 AM PDT

Marriage equality case looks set for the Supreme Court

by Brian Leubitz

Today the 9th Circuit denied the motion for en banc rehearing of the case. The Yes on 8 supporters had sought review from an 11-judge panel, but the denial means that their only recourse at this point is the Supreme Court.

Interestingly, this puts the case on a similar time schedule as the Defense of Marriage Act (DOMA) case that was just decided at the 1st Circuit. We could potentially see the future of marriage equality firmly established (or severely set back) within the very near future.

You can get all the documents from the Prop 8 case at the 9th Circuit's case page.

Somewhat interestingly, the dissenting judges, O'SCANNLAIN, BYBEE and BEA, went off on the President's statement on marriage equality, suggesting that we should have a "greater conversation" and that blocking the en banc hearing cuts off the conversation.  Judges Hawkins and Reinhardt respond:

We are puzzled by  our dissenting colleagues' unusual reliance on the President's views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California's Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.
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Federal Appeals Court Strikes Down DOMA

by: Brian Leubitz

Thu May 31, 2012 at 08:25:54 AM PDT

9th Circuit in San Francisco will hear similar case in September

by Brian Leubitz

A quick word on the marriage equality front, as today the 1st Cir. in Boston struck down DOMA's prohibition of federal recognition of marriage unconstitutional. You can read the decision here.

In something that twists judicial "conservatives" into knots, the argument for recognizing marriages performed in Massachusetts is one of "federalism".

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.  Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest. (Decision at p.34])

In other words, this is a state's rights issue. In Massachusetts and several other states, they have defined marriage to include same sex couples. Who is the federal government to ignore that definition? Judicial restraint and the Supreme Court's precedent simply do not lead to any other decision than that DOMA is unconstitutional.

The 9th Cir in San Francisco will hear a similar case on DOMA in the fall.  With the Prop 8 case stalled at the 9th Cir., the DOMA cases may arrive at the Supreme Court first. While the issues are substantially different, the Court may choose to deal with the whole marriage equality issue in one term, rather than dragging it out.  However, one thing is certain, an electoral victory, or more optimistically several, would be very helpful when the case comes to the Court. Maine and Washington offer the best opportunity come November, and it may be that we here in California may never have to vote on this issue again.

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Obama Supports Marriage Equality

by: Brian Leubitz

Wed May 09, 2012 at 12:18:46 PM PDT

While Prop 8 Decision Remains pending, President Obama "Evolves"

by Brian Leubitz

It may have been the Amendment 1 vote in North Carolina, but for whatever reason, today the President of the United States announced that he supports marriage equality. From ABC News:

California politicians on the "evolution":

"This is a historic day and another step in our country's long march toward equal rights and justice for all. The President's statement is a milestone and so important for the millions of American families who deserve full equality. None of us can rest until marriage equality is a reality for all Americans." - Sen. Barbara Boxer

"I am proud and elated that the President of the United States today announced his support for same-sex couples across our nation who wish to recognize and validate their relationships through marriage," said Senator Leno. "This is an historic moment for our country, and I applaud President Obama for standing up for freedom, justice and equality for all people in a time when other elected officials are reluctant to do so. Denying committed same-sex couples the choice to marry has no benefit to our society and only divides communities and hurts loving couples and their families. I am confident the President's support will help build momentum for the international movement to achieve full equality for same-sex couples everywhere." - Sen. Mark Leno

"I applaud President Obama for endorsing same-sex marriage," said Congresswoman Sánchez.  "If we truly believe in the Constitution, it's clear that lesbian, gay, bisexual, and transgendered individuals deserve equal rights.  They deserve the right to stand in front of family and friends and proclaim their love and devotion for each other in a ceremony recognized in the eyes of the law.  We have a long way to go before we achieve full equality for the LGBT community, but today's announcement by the President puts us one step closer." - Rep. Linda Sanchez

"This is an inspirational, watershed day in an epic struggle.  Every day, we are moving closer to living up to our founding ideals as a nation.  Every day, we are moving further away from a past in which LGBT people were marginalized, delegitimized, and often completely ostracized, their relationships relegated to second-class status." - Rep. Lynn Woolsey

"Today, President Obama reaffirmed the hope and promise most Americans felt nearly four years ago when he was elected. After yesterday's disappointing defeats in North Carolina and Colorado, the President still had the political courage to do the right thing and publicly support marriage equality. I commend his leadership and commitment to all Americans, and I look forward to the day when such announcements cease to be viewed as momentous and start being viewed as common sense." - Sen. Leland Yee

"The American Dream will be stronger for all of us when marriage equality is achieved across our country, though we still have a long road ahead. I'm proud that President Obama is now leading the way as we continue on that journey." - Eric Bauman, Chair, LACDP

"President Obama's words today will be celebrated by generations to come. For the millions of young gay and lesbian Americans across this nation, their President's words provide genuine hope that they will be the first generation to grow up with the freedom to fully pursue the American dream. Marriage-the promise of love, companionship, and family-is basic to the pursuit of that dream." - Chad Griffin, Chair of AFER and incoming president of HRC

"I'm delighted that President Obama has publicly announced his support for marriage equality.  The President's evolution on this important civil rights issue mirrors that of millions of Americans over the last several years, and I'm confident his leadership will help change the hearts and minds of millions more in the days ahead.  With his announcement today, President Obama now stands with San Francisco on the right side of history."   - Dennis Herrera, SF City Attorney and litigant in Prop 8 cases

"Today's announcement by President Barack Obama moves our country one step closer to marriage equality. With the President's personal support on the issue of same-sex marriage, we celebrate and recommit ourselves to the fight for all families.  Here in San Francisco, we stand ready to begin marrying same sex couples, and we will take this hard fought fight all the way to the nation's highest court, if necessary. We remain as deeply committed to the fight for marriage equality today as we were nearly eight years ago when then Mayor Gavin Newsom led the charge on one of the most important civil rights issues of our generation to ensure equal protections and rights for all." - SF Mayor Ed Lee

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